Saturday, October 23, 2010

Attorneys: Necessary evil?

The bar association. Loving, hating, or indifferent, lawyers seem to be part of the political and social landscape. The bar association was conceived in an effort to attempt to hold lawyers accountable, and to increase the quality of practice of law.

While the original goals may have been noble, I must question if the implementation actually accomplishes the original goals of accountability and safety, or if the practicing attorneys have established a system far beyond the original intent.

We've all heard the jokes, we've all heard the descriptions of lawyers. Multiple movies have been made about the unscrupulous attorney. It would seem that the attempt to police attorneys by those with a vested interest in preserving the respectability of that practice would be a good thing.

But is it, or has it given rise to new consequences and behaviors?The original stated goal was to attempt to self-police attorneys, and prevent those unscrupulous attorneys from practice, to protect the consumer, and to preserve the quality of representation. However, across the past seventy years, rules have been established that, in general, leave the layperson out in the cold.

These rules of civil procedure, rather than simplifying the law, often complicate it, requiring attorneys both for the interpretation of the law, as well as for the arguments of what law is appropriate, and the interpretation of simple things, right down to the famous 'meaning of the word 'is''.

Rules lawyering became famous in games, even to the point of parody.

Is the American Bar association accomplishing its goals, however, or has it created new problems which actually preserve the problems, while furthering its own ends?

There have been many instances of attorneys doing things against the best interests of the clients, up to and including failing to represent them, and choosing means of argument that are either not in the best interests of the client, or tangential to the case.

The argument by the court remains that attorneys take an oath, and have a vested interest in preserving the practice of law. However, in several instances, the prosecutor has engaged in practices of falsifying evidence, blocking exonerating evidence, and in most cases, is considered immune from prosecution for such actions.

Further, defense attorneys are generally considered immune from the consequences of failure to bring up points, even to the point of inaction or drunkenness, and are rarely held to account for their actions.

At least, prior to the foundation of the American Bar Association, any person could be heard in a court of law. Often, admittedly, there was some contention over who was human, but any 'freeman' could speak before the court, argue the law, and even make presentations of fact and law.

In many civil cases, the attorney is not paid for completing the action. In cases of probate, the attorney is paid for his time, rather than timely completion, or proper argument of the will or contract. In many cases, this can result in actions taken to prolong the trials, to the point of the attorneys fees consuming all the contents of the estate. It is sometimes in the attorney's best monetary interests to extend the suit, and thus their time involved, as long as possible. Often, as well, by contract, the persons hiring the attorney are left without recourse should the attorneys do so.

It is further to the benefit of attorneys to make the laws as confusing as possible, with as many deceptive or alternative meanings as can be raised, in order to preserve their effective practice.

This can be compared to promoting a 'lay language' which sounds good to the people, but keeping the benefits of a clerical education among the enlightened.

A good portion of the purpose of the constitution, and the republic for which our ancestors fought, was to provide means of recourse, both within and from the law. It was to provide for law that was clearly intelligible to all persons, and which had its meaning plain and straight out. Exceptions and vagueness were to be avoided, as in any case of exception, persons were under different burdens of law.

But what does it mean when the effective means of recourse is monopolized by those to whom it is most effective to preserve the most complicated means of law possible? When the laws in most (nearly all) jurisdictions require the bar association to approve your license before even quoting the most appropriate and applicable court case, where is your recourse when your attorney refuses to bring the case up?

Do you have the means, and right to effective recourse when nearly all attorneys and judges belong to the same association, an association that also simultaneously educates those same attorneys and judges into the 'art' of legalism?

What effective means of recourse might you have when those judges and lawyers make statements directly contrary to historic fact? How do you call a judge and attorney on errors in fact... when they have been educated to believe such is true, even when absolutely verifiable historical data contradicts it?

How do you hold judges, and attorneys, accountable when the only means by which they may be brought to account is by disbarment... by the same persons profiting from their continued practice?

And when judges and politicians willfully align, how can you hold the politicians, officers, or judges accountable, when the judges preserve the interests of the other parties.. who are often bar association members themselves?

It is foolishness to believe in neutrality in those who bear a vested interest in the preservation of the status quo, to do anything but to preserve that status, without outside force being involved.

When no matter how correct your argument, no matter how accurate your data, no matter how well-cited, referenced, and truthful your sources, they can dismiss the points without viewing them, or dismiss them and reject your application for relief as a vexatious litigant, where, then, is your recourse?

When they can, out of hand, reject your appeals, even with an attorney, where is your recourse and correction?

And should they have the power to arbitrarily deny you that right of recourse?

When the right of recourse itself is monopolized, does that not create a far greater trust violation and national security issue than any possible terrorist attack? When the interpretation of the constitution is left to lawyers, and not to the common people, when the meaning of terms wanders all over the map to become not just contrary to the initial idea, but absolutely abhorrent to it, where is your recourse then?

And how may you grasp it?

When the attorneys themselves break the law, and those sworn to uphold and protect the law break the law, and those sworn to uphold and protect the constitution in the making of law break the law... where is your recourse?

In matters related to civil rights, should not the refusal of the prosecutor or defense or judge or any other officer to prosecute a violation of the law, be a violation in its own right? When the prosecutor has 'discretion' to arbitrarily drop any case, or charge for different crimes in the same circumstances due to the 'class' of the violator, is that fair, just, or equal law?

And when the people themselves are denied the benefit of argument of the law before the jury, where is your recourse?

Should not you be capable of taking that recourse into your own hands, to argue both the facts and the law in controversy, as that law itself is part of the facts in the case?

Or are you stuck.. fighting a battle with attorneys who have driven the prices of that recourse out of the hands of the largest part of the American People?

I may, indeed, be a total idiot... but a necessary evil can never be aught but evil, nor can evil be done that is necessary.. only convenient.

If we mean to preserve our rights, and our liberty, we must perform our duty in keeping the law accessible to all, rich and poor, from the least to the greatest.

Otherwise.. liberty itself is damned and dead.

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Thursday, October 21, 2010

The case for rights: criminals

As per usual for my postings, I fully expect this one to be both controversial, and subject to vociferous disagreement. This is a subject that is full of emotions and disagreement, and like any such subject, is bound to attract attention both logical, and less than savory. Do criminals have rights? Do they, when they commit a crime, give them up?

I do a great deal of reading, and a great deal of thinking. It has grown to the point where people claim I do so too much, and that my arguments are abstracted from the real world. However, in this case, the argument itself spawns from the real world itself, from the history that is my specialty and stock in trade.The question does not spawn full-blown from my brow like Athena of legend, nor does it grow like dragon's teeth planted into an army, but in the way all such arguments do, from an idea.

Our current prison system spawned from such an idea, around two centuries gone, an idea in Philadelphia, an idea of a new way of doing things, rather than the execution of felons, of a place for their penitence, and reformation. The term penitentiary comes from this root, the idea that penitence and separation were a more fitting punishment for wrongs against a society than death.

In this penitentiary, the prisoners were granted a bible, and a plain bed, food and water, and a place of solitude. The idea was to allow them to grow penitent, and to humble themselves and restore themselves to society.

Like all ideas, however, this idea was taken up by those who had power, and intended to increase it. In any case for the pursuit of power, there must be two things present, a people to protect, and someone to protect them from. From its roots in British law, conviction offered a steady stream of persons to protect the society from, and a society that was indebted to those that made the laws.

In its initial formation in this country, the nature of felony was a seizure of property, specific properties, in fact. Blackstone's commentaries on the Laws of England, in fact, touched upon this in his articles 'On conviction and its consequences'.

In effect, the felon, upon judgment, lost his right to property, lost his right to sit upon a jury, and lost his life. This was called attainder, the highest punishment any society could give. No longer was the individual a man, nor a human, but a monster to be hunted down and disposed of without qualm, no longer fit to live within society itself. This terrible consequence was only on judgment of guilt, and sentence to death.

This preserved the separation of the law-abiding from the law-breaking, and the largest punishment, and the most public spectacle, in old England, was death by drawing, then quartering. Tortures and hangings were also quite public, floggings, and hanging from a gibbet.

The idea of the new punishment was to be more humane, and more human. It was to offer opportunity for the offender to redeem himself both in the eyes of society, and his own. IT was, in many ways, a baptism by time, a remaking of the individual.

However, our politicians, in their zeal for someone to protect society from, and to control society by, decided that this was an excellent idea. It provided a ready-made excuse that emotions would dictate to us is a good one, for, after all, if one has violated the law before, does it not stand to reason that he may again? And certainly, precaution would seem to dictate that the restriction of those offenders would be a good thing, for after all, they have already set themselves against society.

From this argument spawned new laws, new arguments designed to remove the rights of human beings. After all, if a felon could not own a weapon, then certainly they would not be able to assault, maim, and kill so many. But yet, we ignore the other side of the coin. A felon is still human, still possessed of the right to live, and has no more right than any of us to demand police protection. There is no right to police protection in this nation, no matter the source.

It was always the most effective to have a vague nebulous class of persons out there that were the enemy. While targeted classes have their place in stirring up the public sentiment, vagueness has the advantage, from the eyes of the legislator, of deniability. It cannot happen to us, the reasoning goes, for we abide by the laws! That is for other people.

Lest we forget, the laws are made by those who would separate us into those to protect, and those to protect from. Moreover, by expanding the class to protect from, they expand the pool of persons entirely dependent upon their protection, which they need not give at all.

Let us also not forget that the rights enshrined within the Bill of Rights, and constitution, were deemed to be human rights, natural rights, established for the protection of all humanity, not merely the citizen. These principles were laid out in many later constitutions, to be agreeable to the federal. These rights were protected against that very government that now claims the power... to remove them for wrongdoing, and the power to eliminate them due to the violation of a law.

Why did our constitution not prevent this? It did. Article 1, sections 9 and 10 prohibit attainder. Attainder is the singular power by which any of this may be done.

"But how does this affect me?" the average citizen may cry. It affects you, because that power of attainder, and the principle of the loss of rights for the violation of a crime, will inevitably expand to the vacuum left by the people's lack of action against it. May I ask, what prevents the legislature from passing laws that declare an intimate aspect of life felonious? It is entirely possible for them to declare the excessive use of water a felony, and define excessive as two flushes of the toilet in a single day. It is equally possible for them to declare that the unregistered and unlicensed emission of co2 from any source exceeding 10,500L in a year becomes a felony for the owner of the property upon which the primary emission source occurs.

This, however, would include nearly every human being, as humans emit well over this amount every year, by simply breathing. The proof becomes a negligible exercise in mathematics, a simple statement, and you become a felon.

Sound extreme? Well, perhaps another example may be given.

You may become a felon for using, collecting, or possessing certain feathers without a license. You may become a felon for, in certain cases, engaging in the right to speech, engaging in the right to travel, or even having the temerity to fail to agree to a contract.

The nature of the power to protect, and the power to protect from, expands... and the more that the government may protect you from, the more that they may limit you in your everyday life.

It is by force, and force alone that government acts. Many of us have felt troubled through the years by the increased use of SWAT teams, by the increase in prevalence of violence by the police, but we dismissed it as a 'necessary' evil in the 'war on drugs'. We've allowed the stripping of rights from others, in order to protect ourselves... but the world gets crazier each day. We established 'free speech zones' in the capital, in order to protect politicians from ideas that may be contrary to their own. We allow persons within the United States to arrest with a self-written warrant, to incarcerate without trial, and thus to cause 'unpopular' elements to disappear... without ever speaking to an attorney, without representation, and without recourse. In our zeal for 'protection', we have established a 'constitution free zone' within 100 miles of the border.

We establish trials which, rather than the evidence being presented before a jury, and the laws being discussed, force the jury to either dismiss or rubber-stamp the actions of the prosecutor, and the charges are sealed under 'national security' as is the evidence, from both the defense, the judge, and the jury.

And we go along with it.

For our own protection, they discuss fully disarming our people, and removing the right to speak, if someone might be offended. They threaten and cajole, with lawsuit and cash, and today may seize your property it was involved in the commission of a drug crime... even if you gave no permission to allow it to be used thus.

Remember, protector and the protected. The more helpless that the government may keep you, the more force they may safely exert over you. With each encroachment, it becomes more difficult to push back, to restore your rights, and the rights of your children.

An arrest is not being taken into the station... an arrest is the mere act of stopping you. If you are stopped, and not free to go, that is an arrest, by its very definition, and is a crime without warrant, when an act has not been witnessed.

Consider the fact that prosecutors have said that there are certain crimes that are easy to convict, with minimal evidence, and they have immunity for fraudulently creating evidence to secure conviction.

The suspicion is often enough to convict.

Then ask yourselves if the idea of removing rights from felons... those same rights established to protect them from the government, and to do the same for you yourself, due to violations of the rules created by that same government, is a good idea.

After all, today the politicians present loopholes in the laws... for employees of the government, leaving themselves outside the law that is your burden.

Tax scandals, criminal scandals, drugs, sex, prostitution... and all swept under the rug by judicious application of money, which would leave any other man a felon.

Ask yourselves how this comports with the use of prisoners as laborers, to do dangerous and expensive jobs, at pennies per hour, then harvesting the outcome of their labor to pay for..tubes of toothpaste at vastly inflated prices.

Were we to do so as private citizens, we'd be convicted of involuntary servitude. It can hardly be argued that they are there willingly, or that in any other situation that they would volunteer their time, their energy, and their health for such wages.

Ask yourselves why nearly two percent of our population, a higher proportion than any other nation, are in prison... and a good four percent in addition to that have traveled through the prison system, and are now considered to be without rights.

Then ask yourselves again; "what separates us from them?"

The passage of a law,
By that very government that claims to protect you.

That flu shot? Perhaps by failing to take it you endanger others. Perhaps buying the wrong foods might endanger others. Perhaps, just perhaps, the mere fact of this posting, or the way you vote, the way you worship, the way you think, endangers others.

You might have to ask these questions.. for we are all felons in this nation, under some obscure law or other. The only difference at this point is if it has been enforced on you or not, and when they will choose to do so because you become inconvenient.

The country was established for one reason: the reason of protecting all rights within its borders. The government has no other legitimate purpose. it was for these ends that the states were given the powers of criminal justice, and for the correction of wrongs done against those rights the power of correction and punishment.

Not to 'protect' us from the things that go bump in the night at our own expense. But then.. I am a Total Idiot. What could I know?

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